JUDGMENT

Bennet, J. - This is an appeal by four persons, Ram Charan, Ram Dayal, Bhimina and Jodha, who have been convicted by the learned Sessions Judge of Mainpuri, u/s 394, Penal Code, and sentenced to seven years' rigorous imprisonment each. The accused were charged u/s 396, Penal Code, by reason of having been participants in a dacoity in the house of Sahara Meghraj on the night of 5th and 6th March 1934, in. which Bahora Meghraj was killed. The learned Sessions Judge found that the prosecution case was proved, but because two other persons who are alleged to have taken part in the crime were not before him, the number of accused was less than five and therefore Section 396, Penal Code, did not apply and he says that the accused committed robbery and voluntarily caused hurt to the deceased which was the least proved against them. He therefore did not find that the accused persons had caused death of the deceased, but only that they caused certain injuries to the deceased. These nine injuries noted in the post mortem; report which foe found had been caused were external abrasions and would amount only to simple hurt. The sentence therefore was very severe for a robbery in which simple hurt was caused and it appears to me that although he did not expressly state so, the learned Judge must have passed the sentences on the view that the accused had caused the death of the deceased. If that were his view, he should have convicted the accused of the offence u/s 302, Penal Code, but he has not done so. The case for the prosecution rests on the alleged confession made in the village to three witnesses by one of the accused, Jodha, on 28th, March 1934, and on the discovery of ornaments pointed out by the accused on 30th March 1934. When the accused Jodha was brought before a Magistrate, he refused to make a confession. The history of the affair is as follows:

2. The deceased died sometime during the night and no outcry was made and no one in the village became aware of a crime. At the time he was living alone in his house. Next morning attention was drawn by the fact that the cattle were unattended and that the door remained shut. Balwant Singh, the zamindar, went to the house accompanied by Ajudhia Prasad, the Mukhia, and Kesari. These persons stated that they found Bahora Meghraj lying dead on his bed covered with a cloth and as the witnesses were not of his caste, they sent for Khem Chand, who was a Bahora, of an adjourning village called Seonra. Meanwhile the body had remained covered with the cloth. When Khem Chand came, he removed the cloth preparatory to funeral preparations and he found that there were injuries on the body. He therefore said that matter must be reported at the thana. The chaukidar was sent to make a report. The chaukidar was a dhanukh, a low caste, and he was not taken inside the house or yard and he did not see the injuries on the corpse. He was told to go and make a report and he did BO. This was not a first information report of a crime, but a report made in order that an inquest might be held. The report was entered in the general diary at the thana at 7 p.m., and the report did no; mention any injuries on the deceased. The report says that the deceased used to take intoxicating drugs that his eyes were dilated and It seemed that he had died on account of the effects of over-intoxication from opium and bhanga. The second officer and the mortuary box were sent for an inquiry into the cause of death which was not clear from the report of the chaukidar. The second officer held an inquest and noted some injuries in regard to which the medical witness observes in a letter on p. 7 that most of these injuries were probably due to post mortem staining. In the post mortem it was stated that no definite opinion could be given as to the cause and manner of death owing to the fairly advanced state of the decomposition of the body. There were nine places in which there were one or more abrasions. Of some of these mark